Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49

Land and Environment Court New South Wales

Medium Neutral Citation: Shoalhaven City Council v Easter Developments Pty Limited [2024] NSWLEC 49 Hearing dates: 2 May 2024 Date of orders: 16 May 2024 Decision date: 16 May 2024 Jurisdiction: Class 1 Before: Preston CJ Decision: (1) The appeal is upheld. (2) The decision of Commissioner Espinosa of 10 November 2023 and the orders of 5 December 2023 are set aside. (3) The matter is remitted to be determined according to law and these reasons for decision. (4) The respondent is to pay the appellant's costs of this appeal. Catchwords: ENVIRONMENT AND PLANNING – Appeal against decision of Commissioner – Development of bush fire prone land – Asset Protection Zone on development site and adjoining council land – compliance with APZ requirements in Planning for Bush Fire Protection (PBP) – performance criterion for provision of APZ on adjoining land in perpetuity – no acceptable or alternative solution proposed – misdirection as to PBP - asking wrong question and not asking right question - misdirection as to Council proposed conditions Legislation Cited: Conveyancing Act 1919 (NSW) s 88B Environment Planning and Assessment Act 1979 (NSW) ss 4.15, 4.46 – 4.50, 8.14 Land and Environment Court Act 1979 (NSW) ss 39, 56A Local Government Act 1995 (NSW) Rural Fires Act 1997 (NSW) ss 100A, 100B, Dictionary Rural Fires Regulation 2022 (NSW) cl 42, 45 Cases Cited: N/A Texts Cited: Planning for Bush Fire Protection 2019 Category: Principal judgment Parties: Shoalhaven City Council (Appellant) Easter Developments Pty Limited (Respondent) Representation: Counsel: G Ng SC (Appellant) A Pearman (Respondent)